The Issue Whether Respondent's licenses to operate two group homes should be renewed, or whether renewal should be denied for the reasons charged in the administrative complaints issued by Petitioner.
Findings Of Fact APD is the state agency charged with licensing and regulating group home facilities. The statewide headquarters, or "central office," is in Tallahassee. Regional offices carry out the licensing and regulatory functions within their designated regions, or "areas," in coordination with the central office. APD Area 14 covers Polk, Hardee, and Highlands Counties. Beginning in 2007 and at all times material to this proceeding, HIOTW has been a provider of various residential and non-residential services to developmentally disabled persons in Lakeland, Polk County, Florida, within APD Area 14. In 2007, HIOTW was licensed by the Agency for Health Care Administration (AHCA) to provide non-residential homemaker and companion care services. In November 2008, HIOTW became licensed by the APD Area 14 office to operate Paces Trail Group Home to provide residential habilitation services to developmentally disabled adults. Shortly thereafter, HIOTW was licensed by the APD Area 14 office to operate its second group home, Hampton Group Home. HIOTW was licensed by the APD Area 14 office to operate Timbergreen in May 2009. In February 2010, the APD Area 14 office issued a license to HIOTW to operate its fourth group home in Lakeland--Lake Miriam. The group home license renewal of these two group homes, each with a capacity to serve six adult male residents with developmental disabilities, is at issue in this proceeding. After initial licensure of a group home, the license must be renewed annually. All of HIOTW's group homes successfully have gone through the license renewal process one or more times, except for Lake Miriam, which is seeking its first license renewal. On November 12, 2010, HIOTW submitted an application to the APD Area 14 office to renew its license to operate Lake Miriam. On March 3, 2011, HIOTW submitted an application to renew its license to operate Timbergreen. By letter dated March 25, 2011, Petitioner denied the Lake Miriam license renewal application (March 25 Denial Letter). Petitioner relies on the following charges alleged in the March 25 Denial Letter as the basis for Petitioner's decision: On or about April 14, 2010, an employee of the applicant left two vulnerable adult group home residents alone in a car for at least ten minutes while that employee conducted business inside a bank. One of the adult residents who was left unsupervised in the car had a history of sexually molesting children and other vulnerable adults. The other resident who was left unsupervised in the car was non-verbal. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G-2.012(15)(b), F.A.C. On or about September 29, 2010, an employee of the applicant was transporting group home residents when one of the residents left the vehicle without the driver's knowledge. The vulnerable adult resident was later located at a neighborhood store. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G- 2.012(15)(b), F.A.C. The March 25 Denial Letter also alleged that HIOTW failed to submit a current approved emergency management plan as a third reason to deny the license renewal application. However, Petitioner abandoned the third charge at the outset of the final hearing. Petitioner sought to support its proposed denial of the Lake Miriam license renewal application solely as a penal measure based on the two alleged incidents quoted above. As such, but for these two alleged incidents, Petitioner acknowledges that Lake Miriam's license renewal application is otherwise entitled to approval. By letter dated April 29, 2011, Petitioner denied the Timbergreen license renewal application (April 29 Denial Letter). The April 29 Denial Letter set forth the same two charges that were alleged in the March 25 Denial Letter as the basis for Petitioner's decision. In other words, the same two incidents were asserted as grounds for denying both the Lake Miriam license renewal application and the Timbergreen license renewal application. But for these two incidents, Timbergreen's license renewal application, like Lake Miriam's application, is otherwise entitled to approval. First Alleged Incident (on or about April 14, 2010) The credible evidence established the following facts relevant to the first charged incident. In early April 2010, an employee of HIOTW's licensed companion care service, Frank Davis, was providing companion care to R.O., a developmentally disabled adult. R.O. was not a resident of any HIOTW group home. Instead, R.O. received only non-residential companion services through HIOTW from its employee Frank Davis. As previously noted, companion care services are licensed and regulated by a different agency, AHCA. R.O. was classified as developmentally disabled due to mild mental retardation and behavioral problems. R.O. had a history of sexually abusing children and vulnerable adults. R.O. also had a known tendency of "telling big whoppers," i.e., he was known to be a habitual liar. R.O. apparently told someone two stories of alleged incidents involving his companion, HIOTW employee Frank Davis. On April 14, 2010, the person to whom R.O. told the stories reported the two alleged incidents to the hotline operated by the Department of Children and Families (DCF), which fields reports of possible abuse or neglect.2/ One story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone with Mr. Davis's three-year-old daughter. The other story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone in a car with a non-verbal vulnerable adult for a period of time while Mr. Davis went into a bank to conduct some business. If true, these allegations of R.O. allegedly being left alone with a child in one instance and with a non-verbal vulnerable adult in the other instance would be of great concern. Both the child and the non-verbal vulnerable adult with whom R.O. was allegedly left alone would have to be considered at great risk of abuse by R.O., given R.O.'s known history of sexually abusing both children and vulnerable adults. With regard to R.O.'s first story, involving Mr. Davis's three-year-old daughter, a DCF adult protective investigator (API) was able to quickly determine that the allegation was completely baseless. In screening this allegation to determine if a formal investigation was warranted, the API spoke with R.O. and then with Samuel Cooper, one of the owners of HIOTW, on April 15, 2010, the day after the hotline call. Mr. Cooper provided a detailed description of the physical appearance of Frank Davis's daughter. When Mr. Cooper's description of Mr. Davis's daughter was compared to R.O.'s description of the girl with whom he was supposedly left alone, the two descriptions were so vastly different that the API was able to, and did, immediately determine that R.O. had fabricated the story, and the matter was closed without a formal investigation. The same API conducted an investigation of R.O.'s second story that he was left in Mr. Davis's car with a non-verbal vulnerable adult while Mr. Davis went into a bank. However, the API did not mention this story when he spoke with Mr. Cooper, nor did the API inform anyone from HIOTW that he was conducting a formal investigation. In conducting his investigation, the API spoke with R.O., twice with Mr. Davis, and with O.J. Bennett, another owner of HIOTW. HIOTW initially learned of R.O.'s story about the bank trip by a phone call from R.O.'s waiver support coordinator. Mr. Bennett immediately investigated the matter, speaking with Mr. Davis and also with the bank manager who was present and had personally observed the events that day. Mr. Bennett's report from his investigation was that when Mr. Davis drove up to the bank with R.O., he left R.O. in the car only to walk about nine feet from the car to the bank's glass entrance area. Mr. Davis signaled to a bank employee who came to the door. Mr. Davis told the employee he wanted to set up an account to make direct deposits of his paycheck. When Mr. Davis was told he would have to come into the bank and it would take a few minutes, Mr. Davis went back to the car for R.O. and brought him into the bank to wait while Mr. Davis set up the account. R.O. remained in Mr. Davis's sight at all times. Based on Mr. Bennett's report, which he reviewed with Mr. Cooper, HIOTW determined an unusual incident report (UIR) was not required, because there was no reason to suspect neglect of R.O. Several weeks later, when HIOTW learned from an APD employee that DCF was conducting a formal investigation, HIOTW submitted a UIR that set forth the details of Mr. Bennett's investigation and concluded that R.O. had been in Mr. Davis's sight and adequately supervised at all times. The APD Area 14 administrator confirmed in her testimony that if the facts were as Mr. Bennett found them to be in his investigation, there would not have been inadequate supervision, and there would have been no reason to submit a UIR. Of greatest significance with regard to R.O.'s story about the bank incident, the API determined that R.O. had lied about being left with a non-verbal vulnerable adult. Instead, the API found that Mr. Davis drove to a bank with R.O., and no one else, in the car. The DCF investigator's report summarized the differing versions of events told to him by R.O. and by Mr. Davis. R.O.'s version was that Mr. Davis left him in the car for the whole time that he went into the bank. Of course, R.O. also said that he was left with another adult, and that was not true. Therefore, R.O.'s statement to the DCF investigator could not be considered credible or reliable. According to the DCF investigator, Mr. Davis told him that he left R.O. alone in the car to go into the bank, but came back out of the bank to get R.O., who he then brought into the bank to wait while he conducted his business. However, Mr. Davis testified that he only told the DCF investigator that he walked up to the bank while R.O. was in the car. Mr. Davis's version of what happened and what he told the DCF investigator is more credible than the DCF investigator's report of what Mr. Davis told him. Mr. Davis's version was corroborated by the hearsay account of the bank manager, who told Mr. Bennett that Mr. Davis brought R.O. in the bank with him, only having left R.O. alone to walk up to the bank entrance. The bank manager confirmed Mr. Davis's testimony that R.O. was in Mr. Davis's sight at all times. In crediting Mr. Davis's version of events, corroborated by the bank manager, the undersigned finds it significant that Mr. Bennett told the DCF investigator about the bank manager eyewitness, and Mr. Bennett was under the impression that the DCF investigator would follow up by calling the bank manager. But the DCF investigator did not attempt to interview anyone at the bank, despite the fact that persons at the bank would have been the only other eyewitnesses besides Mr. Davis, who had a self-interest in the incident, and R.O., the habitual liar whose other story about Mr. Davis had been proven false. Petitioner did not undertake its own investigation of the facts, either at the time of the incident or at the time it was considering whether to rely on the incident as grounds to, in effect, revoke two of HIOTW's group home licenses. Instead, according to the area administrator for APD Area 14, Petitioner simply relied on the DCF investigation report. Indeed, the area administrator did not even seem to understand the DCF report, because at the hearing, she was adamant in her belief that DCF confirmed the allegation that Mr. Davis left R.O. in a car with a vulnerable non-verbal adult group home resident. The area administrator conveyed her misimpression to the central office in discussions to consider whether to non-renew two HIOTW group home licenses based on this incident. Ultimately at hearing, the area administrator conceded that she was improperly interpreting the DCF report, thinking that the allegation portion of the report contained the actual DCF findings. Even so, she steadfastly (and erroneously) asserted that she did not give any false information to the central office regarding HIOTW.3/ In addition to the misimpression conveyed about the R.O. incident, the area administrator testified that she had an employee convey numerous reports of allegations or suspicions of HIOTW improprieties to the central office in a single packet for the purpose of a decision on whether to renew the two HIOTW group home licenses. The area administrator explained other information about allegations and suspicions were sent in the same package so that the central office could also consider whether to terminate HIOTW's Medicaid waiver provider agreement at the same time. However, she admitted that the whole packet of material was sent for the purpose of review and a decision on whether to non-renew HIOTW's two group home licenses. As such, it would be difficult to ignore the extraneous allegations when making decisions regarding the license renewal applications, "[o]f course, you have all of that in your mind[.]" The actual transmittal package to the central office was not produced, apparently because it was sent by electronic mail, and there were some APD email system problems that got in the way of producing the email transmittal package. Nonetheless, the area administrator's description of what she believes was sent in a single package to the central office was sufficient to paint the picture of a litany of negative missives regarding HIOTW, intended, in part, to support the area administrator's recommendation to deny license renewal.4/ Petitioner did not allege in the administrative complaints and did not prove at the hearing that HIOTW itself was blameworthy for the R.O. incident. The APD Area 14 administrator testified that in recommending non-renewal of the two HIOTW group home licenses, a significant factor that she took into account was that HIOTW failed to promptly submit a UIR to report the R.O. incident. The facts found with respect to the R.O. incident do not demonstrate that a UIR was required. Moreover, HIOTW was not charged, in either administrative complaint, with a violation of its UIR reporting obligations. The DCF incident report concluded with a verified finding of inadequate supervision. The DCF investigator testified that it was his finding that "[p]rimarily, Mr. Davis was responsible for the inadequate supervision" of R.O. When asked whether HIOTW was also responsible as Mr. Davis's employer, the investigator said, "being his employer, and trainer, yes." However, neither the DCF investigator, nor Petitioner, presented any evidence to suggest that HIOTW was negligent in its hiring, training, or supervision of its companion care employees, generally, or Mr. Davis, in particular. Nor was there any evidence that HIOTW failed to appropriately respond to the R.O. incident once it was made aware of the incident. The DCF incident report found that Mr. Davis was an appropriately screened employee with no adverse history. Petitioner presented no evidence to the contrary. Both the DCF investigator and the area administrator for APD Area 14 concluded that HIOTW took appropriate action regarding the R.O. incident, by removing Mr. Davis from serving as R.O.'s companion and by putting Mr. Davis through additional "zero-tolerance" training. Mr. Davis's employment was terminated shortly thereafter for reasons unrelated to the R.O. incident. Although the DCF incident report verified a finding of inadequate supervision, the report concluded that the overall risk associated with the finding was low because of appropriate corrective action taken by HIOTW.5/ The area administrator for APD Area 14 candidly admitted at the final hearing that HIOTW handled the R.O. incident appropriately and took corrective action that was deemed sufficient by APD and alleviated any health and safety concerns. Inexplicably, she continued to support the charges in the two denial letters, which alleged that the R.O. incident "threatened the health, safety, and well being of the applicant's residents," because R.O., with his history of being sexually abusive, had allegedly been left alone with a vulnerable, non-verbal adult group home resident. Since the R.O. incident did not involve any HIOTW group home residents, but rather, involved non-residential services provided under HIOTW's companion care license, one would expect that if licensure disciplinary action was warranted against HIOTW at all for this incident, it would have been initiated by AHCA as the licensing agency for companion care services. No evidence was presented that AHCA took any disciplinary action against HIOTW's companion care license. Instead, the evidence established that HIOTW's companion care license remained in good standing as of the final hearing, more than one and one-half years after the R.O. incident. Notwithstanding APD's knowledge in June 2010 of the DCF report and findings regarding the R.O. incident, APD proceeded to renew annual licenses for the period of October 1, 2010, through September 30, 2011, for two other HIOTW group homes--Pace's Trail Group Home and Hampton Group Home. The license certificates state that the facilities comply with the licensure rules of APD. No evidence was presented that APD issued administrative complaints seeking to revoke these group homes' licenses; however, the area administrator made clear that she did not intend to renew any licenses for any HIOTW group homes in the future. Second Alleged Incident (on or about September 29, 2010) The facts regarding the second alleged incident involving HIOTW employee Donyell Goodman, were not disputed. At the time of the incident, Ms. Goodman had been employed by HIOTW for three years, with a very good, unblemished employee record. On the day in question, she was serving as a van driver to transport several HIOTW companion care clients to various sites within the local community. E.K. was one of those clients receiving companion care services that day; E.K. also was a resident of HIOTW's Lake Miriam Group Home. E.K. is developmentally disabled due to his diagnosis of mental retardation. Ms. Goodman stopped to let off one client, and she watched the client walk to the appropriate destination and go inside. She then resumed driving. When she had driven for about five minutes, she glanced in her rear view mirror and realized that E.K. was not there. Ms. Goodman immediately called LaDonna Bennett, the third owner of HIOTW, to report that E.K. must have snuck out of the van at her last stop, and she was going back to find him. Ms. Bennett also headed over to where Ms. Goodman said she had stopped, to assist. When Ms. Goodman returned to the site of her last stop, she found E.K. there, inside the corner store. E.K. was fine and returned to the van without incident. E.K. apparently admitted to sneaking out of the van, saying he just wanted some fresh air. The entire incident spanned about ten minutes. Ms. Bennett and Ms. Goodman both immediately prepared and submitted UIRs to report the incident. Ms. Goodman received a written reprimand in her HIOTW personnel file and was suspended for several days. When she resumed work, she underwent additional training, was removed from the van driver position, and reassigned to the "third shift" with no direct interaction with residents. The UIR reports triggered a DCF investigation. The AIP who conducted the investigation confirmed the facts that were set forth in the two UIRs. The AIP's investigation included an assessment of E.K. at the Lake Miriam Group Home where E.K. was a resident. The DCF incident report concluded as follows: Victim Safety Factors Implications: No implications for the [victim's] safety. [Perpetrator] Factors Implications: Based on the informaiton [sic] rec'd, API has determined the [adult perpetrator] to pose no threat to the [victim]. No implication [sic] for the [victim's] safety. Facility Factors Implications: Based on the [victim] to the grouphome [sic], API has determined the [victim] to not be at any risk. The API found that the overall safety assessment was low; however, based on the UIRs and interviews with Ms. Goodman and Ms. Bennett, the incident report concluded with a verified finding of inadequate supervision. The API who conducted the investigation testified at hearing and confirmed that the inadequate supervision finding was directed to Ms. Goodman. When asked if HIOTW was also responsible because it was Ms. Goodman's employer, the API said he did not know and could not answer that question. Petitioner did not allege in the administrative complaints, and did not prove at the hearing, that HIOTW itself was blameworthy for the E.K. incident. Neither the DCF investigator, nor Petitioner, offered any evidence that HIOTW had negligently hired, trained, or supervised its employees, including Ms. Goodman in particular. Both the DCF investigator and the APD Area 14 area administrator agreed that HIOTW acted appropriately in response to the E.K. incident to alleviate any concerns about health and safety, by imposing appropriate discipline against Ms. Goodman for her lapse that caused the incident, and by taking steps to ensure no reoccurrence of the incident. In 2011, well after APD had knowledge of the DCF reports and findings on both the R.O. and E.K. incidents, APD issued a series of temporary or conditional licenses to both Lake Miriam and Timbergreen during the license renewal process to give HIOTW time to respond to certain identified omissions in the renewal applications, such as dental records, fire inspection reports, and the like. The temporary and conditional license certificates issued in February and March 2011 state on their face that the facilities comply with the licensure rules of APD. According to the APD Area 14 administrator, each of the DCF reports on the R.O. and E.K. incidents resulted in "a verified abuse finding." The area administrator testified that any DCF report resulting in a verified abuse finding is classified as a Class I offense, which is the most serious class of offenses and is sufficient, without more, to give APD legal authority to deny licensure or renewal of a license to a licensed applicant named in the report. Yet, despite the verified finding regarding the R.O. incident, Petitioner did not deny license renewal applications for other HIOTW group homes. Despite the verified findings in both the R.O. and E.K. incidents, Petitioner issued temporary and conditional licenses to Timbergreen and Lake Miriam during the license renewal process. Thus, Petitioner has not exercised its discretion consistently in dealing with HIOTW. Petitioner has not exercised its discretion consistently in contexts far more egregious than the two incidents charged here. For example, Petitioner acknowledged that a recent incident of abuse and neglect, resulting in the death of a group home resident, did not trigger action by Petitioner to take away all of the group home licenses held by the licensee. Instead, Petitioner only acted to suspend the license of the specific group home where the deceased resident had resided. Petitioner did not attribute this very serious incident to all facilities licensed by the same entity. It would be unreasonable for APD to automatically, without discretion, equate all verified findings--whether of abuse or neglect, whether deemed low risk or high risk, whether risk of death or imminent bodily injury was found or not found. A protracted period of abuse or neglect that actually causes death of a group home resident is on a different plane, in terms of seriousness, from a brief employee lapse in which an individual is not caught when he sneaks away, but is recovered without harm or incident ten minutes later. No explanation was offered by Petitioner as to why, in the more serious situation where a verified incident resulted in death, action was not taken to revoke all group home licenses held by the licensee, whereas here, two incidents verified as low risk situations by DCF (one of which was not proven at the hearing), would cause Petitioner to act more harshly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Persons with Disabilities, approving Respondent's applications to renew its annual licenses to operate Lake Miriam Group Home and Timbergreen Group Home and issuing standard licenses for one-year terms to those facilities. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2012.
The Issue The issue presented is whether case management and homemaker services for Petitioner should be terminated.
Findings Of Fact In June 2004, the Department determined that Petitioner was eligible for services pursuant to its Community Care for Disabled Adults Program. Pursuant to its contract with the Department, Gulf Coast Jewish Family Services, Inc., d/b/a Gulf Coast Community Care began delivering those services. Petitioner's apartment was dirty and cluttered, and she was in danger of being evicted from her Section 8 federally- subsidized housing. Petitioner began receiving case management and homemaker services, with the stated goal of cleaning and organizing her apartment so that she could avoid eviction. The case management services consisted of determining and managing the appropriate services for Petitioner. The homemaker services consisted of a helper going to Petitioner's apartment once a week for three hours to teach and assist her in keeping her apartment clean and uncluttered. The services rendered to Petitioner were helpful and encouraged her to gradually discard much of her clutter so that it was easier to keep the apartment clean. When Gulf Coast employees came to her apartment, she was involved in sorting and discarding unneeded items and the apartment appeared much neater. Although it was difficult for her, Petitioner was able to get the apartment ready for her Section 8 inspection, primarily by herself. In August 2004, Gulf Coast determined that the stated goal of organizing and cleaning Petitioner's apartment so that she could avoid eviction had been achieved. Both Petitioner's case manager and her homemaker services supervisor visited her apartment and determined that Petitioner was able to keep the apartment up to standards. Based upon the achievement of the stated goal, the Department notified Petitioner that the case management and homemaker services were being terminated. Although Petitioner testified at the final hearing that she had developed a "heart condition" and was being enrolled in a cardiac rehabilitation program, no evidence was offered, either expert or non-expert, that her "heart condition" would prevent her from keeping her apartment clean and uncluttered. Rather, Petitioner admitted that no doctor had told her she should not perform housework.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner is no longer eligible for services and terminating the case management and homemaker services provided to her. DONE AND ENTERED this 29th day of March, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2005. COPIES FURNISHED: Ellen Nichols 2501 Seaford Circle Apartment No. 1 Tampa, Florida 33613 Raymond R. Deckert, Esquire Department of Children and Family Services 9393 North Florida Avenue, Suite 902 Tampa, Florida 33612 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioners' applications to license their group home facilities should have been approved by Respondent, Agency for Persons with Disabilities ("APD" or "Respondent").
Findings Of Fact The undersigned makes the following findings of fact: APD is the state agency that licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs. § 393.067, Fla. Stat. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Id. Stipulated Facts Submitted by the Parties The parties stipulated to the following facts. Loving Touch Dynamic Group Home and Loving Touch A Brighter Future Group Home are owned and operated by Loving Touch Adult Family Care, Inc. Zulia Brenovil is Loving Touch Adult Family Care, Inc.'s sole shareholder. Loving Touch's applications for licensure of the A Brighter Future and Dynamic homes were ultimately complete and met all requirements for licensure. However, APD exercised its discretion to deny the applications pursuant to Section 393.0673(2)(b), Florida Statutes. The parties dispute whether such discretion was correctly applied in this case. Until the denial of the A Brighter Future and Dynamic home applications, APD had not previously denied a license application submitted by Loving Touch Adult Family Care, Inc. Loving Touch Adult Family Care, Inc., has never had a license revoked or suspended by APD. The Notice of License Application Denial/Administrative Complaint does not charge Loving Touch Adult Family Care, Inc., with making false statements or omitting material facts in its license application under Section 393.0635(2)(a)1, Florida Statutes. Loving Touch Adult Family Care, Inc., also owns three additional homes licensed by APD: Loving Touch "My Place," Loving Touch "Transition," and Loving Touch "Unity." See also (Pet. Exs. 24-26.) APD renewed the licenses of My Place, Transition, and Unity after March 2, 2018. APD had previously renewed and/or issued the licenses of My Place, Transition, and Unity after the alleged verified findings by the Florida Department of Children and Families. Petitioners are the applicants for licensure of two group home facilities. Resp. Exs. 1 and 3. Petitioners' corporate officer and operator is Zulia Brenovil. She prepared and submitted both group home licensure applications for Loving Touch "A Brighter Future" Home and Loving Touch "Dynamic" Home to APD in December of 2017. Pre-Hr'g Stip. 3.(e); Resp. Exs. 1 and 3. Upon receipt, APD reviewed Petitioners' applications for licensure and took steps to verify the accuracy of the information provided in the applications. As part of the review, APD conducted a search of the Department of Children and Families ("DCF") records on the Florida Safe Families Network. Resp. Ex. 2, pp. 80-81; Resp. Ex. 3, pp. 186-197. APD's search of DCF records revealed four DCF reports that contained verified findings of abuse, neglect, or exploitation against Brenovil. Resp. Exs. 6, 7, 8, and 10. Those cases are outlined in more detail below. DCF Case Number 2015-147636 DCF case number 2015-147636 resulted in a verified finding of maltreatment/threatened harm against Brenovil. Resp. Ex. 6, p. 190. Tiffany Perry was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child E.L., a resident of one of Brenovil's group homes, was being bullied by other children and was not receiving enough food. Perry began her investigation by performing background checks on the persons involved in the report. Perry then visited Brenovil's group home. Perry interviewed all the children in the home. Perry noted that E.L.'s bedroom door had locks on the outside of the door that would allow someone to lock E.L. inside his bedroom. Initially, Brenovil denied knowing that the locks had been switched, but Brenovil ultimately admitted to Perry that Brenovil's maintenance man had switched the locks. Resp. Ex. 6, p. 191. Perry verified the findings against Brenovil because the locks on E.L.'s bedroom were on the outside of the door and this allowed E.L. to be locked in his bedroom. Resp. Ex. 6, p. 191. This also resulted in the other children locking E.L. in his bedroom. Resp. Ex. 6, p. 191. Additionally, if E.L. was locked in his bedroom she concluded that his ability to quickly and safely escape the house in the event of an emergency, such as a fire, would be impaired. Resp. Ex. 6, p. 191. DCF Case Number 2016-297713 DCF case number 2016-297713 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, pp. 209-210. Charlie Parker was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child L.K., a resident of one of Brenovil's group homes, was using a cell phone to send pictures of L.K. cutting herself and to send other explicit pictures. Resp. Ex. 7, p. 209. There was also an allegation that another minor child resident, O.W., was not being closely monitored. Parker began his investigation by visiting Petitioners' group home. Upon inspection, Parker found that L.K.'s safety plan was not in L.K.'s file, as required. Parker testified that L.K.'s status was "to be seen, sight and sound." "Sight and sound" means that L.K. was supposed to be within sight of the house parents at Petitioners' group home at all times, and L.K. was never to be left unsupervised. Parker stated that he made verified findings against Brenovil because the safety plans for O.W. and L.K. were not properly located in the group home as required, and that staff members of the group home did not know the contents of the plans. Brenovil admitted to Parker that she was aware that the proper information was not available to the staff members at the group home. Based on Brenovil's comments and Parker's investigation and interviews of other staff members, Parker closed the case with a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, p. 211. DCF Case Number 2017-125783 DCF case number 2017-125783 resulted in five verified findings of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 8, pp. 228-229. Virginia Snyder was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that five minor children at two of Brenovil's group homes were not being adequately supervised. Resp. Ex. 8, pp. 227-228. Snyder began her investigation by interviewing the minor children residents of the group homes and the staff members, including Brenovil. Part of the allegations involved a child not receiving a ride back to the group home. The child alleged that she called the group home and no one would pick her up. Brenovil informed Snyder the staff member at the group home could not pick the child up, and Brenovil could not pick the child up because she had taken headache medicine. Brenovil and Brenovil's staff member both admitted to the investigator that the minor child had been dropped off at another foster home without contacting the foster mother of that foster home in advance. Snyder verified findings against Brenovil that children were going between Brenovil's group home and another group home without staff adequately determining or knowing where the children were going or located. Additionally, one child was left at a home and neither Brenovil, nor her employees, were able to pick the child up. DCF Case Number 2009-146042 DCF case number 2009-146042 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 10, pp. 248-249. In that case, two residents of Brenovil's group home had improper sexual relations, due to inadequate supervision. Resp. Ex. 10, p. 248. Brenovil's Response to the DCF Verified Findings Brenovil denied switching or having someone switch the locks with respect to DCF case number 2015-147636. Brenovil testified that the safety plans for O.W. and L.K. were properly in the group home during Investigator Parker's investigation in DCF case number 2016-297713. Brenovil denied talking to an investigator with respect to DCF case number 2017-125783. Brenovil testified that she submitted both applications to APD in full in December of 2017. However, the Comprehensive Emergency Management Plans, submitted as part of the applications, were dated January 2018. Resp. Ex. 2, p. 23. Brenovil did not sign the Comprehensive Emergency Management Plan until February 16, 2018. Resp. Ex. 2, p. 37. Similarly, the Sexual Activities Policy, another document submitted as part of the licensure application, was not signed by Brenovil until January 18, 2018. Resp. Ex. 2, p. 103. Similarly, the Sexual Activity Policy submitted as part of A Brighter Future's application for licensure was not signed by Brenovil until January 18, 2018. Resp. Ex. 4, pp. 184-185. After being confronted with the late documents, Brenovil admitted that the completed applications were not submitted until after December of 2017.3/ As part of the DCF investigation in case number 2015- 147636, Perry interviewed Brenovil's board member, Mr. Phillip Alexander ("Alexander"). Resp. Ex. 6, p. 194. Alexander informed Perry that the locks had been reversed for years. Resp. Ex. 6, p. 194. When confronted with this at the hearing, Brenovil stated that Alexander did not make this statement to DCF. Brenovil later testified that she knew Alexander did not make that statement because Brenovil was present for the conversation between Alexander and Perry. However, on re-direct, Brenovil acknowledged that she was not present for the conversation between Alexander and Perry. Brenovil testified that she voluntarily gave up her licenses for her DCF licensed group homes, and that there had been no threat of administrative action from DCF. However, Michelle Windfelder, a DCF licensing specialist, testified that Brenovil relinquished her licenses in lieu of revocation. Windfelder testified that, because of problems in Brenovil's home, DCF contacted Brenovil and advised Brenovil that she had the option of relinquishing her licenses, otherwise DCF was going to revoke the licenses. Windfelder testified that because of the impending revocation by DCF, Brenovil decided to voluntarily relinquish the licenses. Petitioners offered no compelling or persuasive evidence to show that APD wrongly denied their license applications, or abused the discretion afforded to it under section 393.0673(2)(b), Florida Statutes. The undersigned finds the testimony and evidence of the DCF investigators and the DCF licensing specialist more compelling and credible than that of Brenovil. Ultimately, the Petitioners did not carry their burden of proof to show that APD abused its discretion or when it denied their initial applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying the license applications of Petitioners, Loving Touch "A Brighter Future" and Loving Touch "Dynamic." DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2019.
The Issue Whether Petitioner’s application for licensure as a foster home should be granted.
Findings Of Fact The Department is the state agency responsible for licensure of foster homes. In carrying out its licensure duties, the Department contracts some license processing functions to FamiliesFirst Network. In turn, FamiliesFirst subcontracts with Children’s Home Society to perform a variety of license processing functions. In this case, Children’s Home Society was the organization that initially reviewed Petitioner’s 2007 licensure application. In 1984, prior to her employment with the Department, Petitioner married a man in the military. Petitioner testified that the marriage was one of convenience for both parties and, while legal, was not a true marriage since the marriage was never consummated. Petitioner’s explanation regarding the benefit each got from the marriage was vague. In essence, Petitioner characterized her marriage as a way for her to get out of financial difficulty. She testified that a soldier approached her and offered to pay her bills if she would marry him so that he could live off base. However, Petitioner legally divorced her husband in 1988 when she learned that he had contracted AIDS. Since at least 1997, Petitioner was employed by the Department. At some point, she was employed as an Economic Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner generally handled applications for food stamps and interviewed clients to determine eligibility for food stamps, Medicaid and cash assistance benefits. In 1999, while employed with the Department, Petitioner applied for licensure as a foster home. On the initial licensing application in 1999, Petitioner wrote in the marital history section, “I am single and have never been married.” On the foster family self-study, Petitioner left her marital history blank. Furthermore, Petitioner marked “n/a” for ‘not applicable’ in the section regarding her divorce. That information was incorporated in the initial licensing study compiled by Children’s Home Society on April 28, 1999. Clearly, the statements made by Petitioner in her 1999 application and the information she provided to the Department during the application process were false since she had been married and divorced. Petitioner also completed a licensure self-study form in April 2001. In the sections regarding her marital history, Petitioner marked “n/a” for ‘not applicable,’ incorrectly indicating that she had never been married or, in some manner, the section on marriage did not apply to her. Again, the information was false. In another licensure self-study in September 2001, Petitioner left her marital history blank. Similarly, Petitioner left the marital history section blank on a personal profile form completed by her in 2001. That document was updated in 2003 and the marital history section was again left blank. In March 2003, Petitioner again marked “n/a” in the marital history section of a licensure self-study form. At about the same time, Petitioner also completed a questionnaire as part of the home-study process performed by FamiliesFirst Network. One of the questions called for a box to be checked as to how a previous marriage ended. Petitioner did not check any of the answers or indicate that she had been divorced. The lack of response is particularly troubling since Petitioner had indicated at least once that she had not been married, at least twice that the marital history sections on various forms did not apply to her based on her rationalization that the marriage had never been consummated, and at least once that the divorce history section did not apply to her. However, Petitioner knew that she had been legally married and legally divorced. Indeed, the fact of her divorce was not affected by the lack of consummation of the marriage; her ostensible rationale for not recognizing her marriage was from a religious point of view. These misrepresentations were material to the review of her fitness for licensure. Finally, in her 2005 application, Petitioner did indicate to the person who was processing her application that she was married. The provision of the correct information by Petitioner in 2005 occurred after the processor inquired and pursued questions about Petitioner’s marital history and does not mitigate Petitioner’s past multiple misrepresentations regarding her marital and divorce history. At hearing, Petitioner acknowledged that she provided inconsistent information about her prior marriage. She was concerned that her marriage was coming back to haunt her. She stated, “I didn’t know that it was going to come back and bite me.” However, such concern does not mitigate the fact that Petitioner failed, on multiple occasions, to disclose her divorce and marriage to the Department. As indicated above, Petitioner was also employed by the Department during the time she was seeking licensure as a foster home. Unfortunately, throughout the time that Petitioner was employed, she developed a very troubled relationship with the Department and, in particular, with Katie George, the Department’s General Counsel. Petitioner’s difficulty with the Department resulted in several legal cases against the Department in which Ms. George represented the Department. These cases extended over a five-year period. The cases involved two small claims cases requesting reimbursement for sodas and copying costs that arose out of five other litigations before the Public Employees Relations Commission. The two small-claims lawsuits seeking reimbursement for out-of-pocket expenses, including sodas and photocopies, were dismissed by the Court. The evidence demonstrated that Petitioner was terminated twice by the Department. Petitioner contested her first dismissal before the Public Employees Relations Commission. Petitioner’s first dismissal was overturned by the Public Employees Relations Commission on a legal technicality. The Commission specifically noted that they neither condoned nor agreed with malfeasance in office but had to grant a double- jeopardy type exception since the Department had originally suspended Petitioner for malfeasance in office and then attempted to increase the discipline it had imposed to dismissal of Petitioner. Petitioner was reinstated to her position by the Commission and back pay was ordered. As part of the back-pay case with the Public Employees Relations Commission, the Petitioner was denied reimbursement for private cash advances and private auto insurance expenses that she claimed the Department owed to her as part of her wages. Petitioner’s second termination was for conduct unbecoming a public employee and involved outrageous and bizarre behavior towards a client of the Department who had applied for Medicaid and food stamps. During the incident Petitioner berated, belittled and treated the client so poorly that he was reduced to tears and would not return for food stamps when it was time to renew the same. The client prayed with Petitioner inside her office. The client described Petitioner as chanting and acting so strangely that he abruptly ended the prayer by saying “amen.” Additionally, Petitioner told the client that she understood how he felt and that the Department was out to terminate her because some of her co-workers thought she was crazy. She also told the client the Department had tried, but failed, to terminate her before. The client eventually filed a complaint with the Department regarding Petitioner and her behavior during the interview with the client. Later, Petitioner called the client at his unlisted phone number that she could only have obtained through Departmental records and tried to intimidate the client into changing his complaint or not testifying. Based on this incident and some other incidents regarding Petitioner’s work, the Department dismissed Petitioner a second time. Petitioner, again, contested her dismissal before the Public Employees Relations Commission. The dismissal was upheld by all the Courts who heard the case and eventual appeals. The nature of the litigation and the eventual outcome are illustrated in the Public Employees Relations Commission Hearing Officer’s Recommended Order dated February 10, 2003; the Public Employees Relations Commission Final Order dated March 17, 2003; the per curiam affirmed opinion of the First District Court of Appeal dated February 18, 2004; the Order of the First District Court of Appeal denying rehearing dated April 5, 2004, and the Order of the Supreme Court of Florida dismissing review dated May 19, 2004. In addition, Petitioner filed a federal employment discrimination lawsuit against the Department. The suit was based, in part, on her earlier termination. During the course of the federal litigation, depositions were taken. During those depositions, Ms. George learned that Petitioner had falsified her application with the Department because she had previous jobs from which she had been fired that were not listed on the application. However, the Department was represented by outside risk counsel, who negotiated a $5,000.00 settlement payment to Petitioner. The settlement was accepted by the Department based on the nuisance value of continued litigation of the case. The Department did not admit any discriminatory action towards Petitioner in its termination of her. At some point after her second termination, Petitioner visited Ms. George’s legal office at the Department. Petitioner visited the office to either pick up or deliver some papers. However, testimony was not clear on the exact nature of the visit and what occurred during Petitioner’s visit. Testimony did establish that Petitioner became disruptive in the office towards Ms. George’s legal staff. Petitioner was asked to leave and initially refused. Eventually, Petitioner left the office after Ms. George instructed her staff to call law enforcement. Petitioner also filed a complaint with the Florida Bar regarding Ms. George’s representation of her client. The Bar complaint against Ms. George was dismissed by the Florida Bar. Finally, during this proceeding, Petitioner accused Ms. George of sending law enforcement to Petitioner’s house. Ms. George did not take such action against Petitioner. Given all of these incidents, Petitioner’s troubled employment history and litigation with the Department, the evidence demonstrated that, in the past, Petitioner has not worked cooperatively with the Department and seems to have developed a difficult and suspicious relationship with it. Based on this history, the evidence did not demonstrate that Petitioner could, presently or in the future, work cooperatively with the Department as a foster parent. The 2007 application was reviewed by Nicola Spear. Ms. Spear works in the licensing section of FamiliesFirst Network. She compiled the November 2007 foster parent licensing home-study on Petitioner. After reviewing the application and completing the home-study, Ms. Spear recommended that Petitioner’s license application be granted by the Department. Ms. Spear was unaware of the Petitioner’s history regarding the Department or her prior statements regarding her marriage and divorce. She subsequently learned the reasons why Petitioner was terminated from her employment with the Department, including inappropriate client interactions. Once the Department learned of Petitioner’s application and the initial recommendation of Ms. Spear, either Ms. George or administrative staff called a meeting with its contractors and Ms. Spear to review the recommendation and provide information regarding Petitioner’s history with the Department. After receiving the information, Ms. Spear changed her recommendation and recommended that Petitioner not be licensed as a foster parent. Ms. Spear testified that while Petitioner was very cooperative during the licensure process, she was concerned that Petitioner might not be able to work cooperatively with the Department or its contracted partners. Mary Martin, a licensing specialist with the Department, received Petitioner’s licensing packet from Ms. Spear. Ms. Martin was made aware that Petitioner had been dismissed from the Department, had a history of difficulties with the Department and of Petitioner’s lack of candor regarding her marriage and divorce. Ms. Martin also learned from Ms. Oakes, a contractor for the Department, that in 2002, Ms. Oakes had instructed her staff to call law enforcement to a visitation between foster children and their parent because Petitioner wanted to participate in the court-ordered closed visit and would not leave the visitation site at Children’s Home Society. However, the contractor who supplied this information did not witness the incident. The person who was present during the alleged incident did not testify at the hearing and all the testimony regarding the incident was based on hearsay. Additionally, Petitioner was not aware that law enforcement had been called since Petitioner voluntarily left the visitation before the police arrived. Given the hearsay nature of the facts surrounding the visitation incident, the incident cannot provide a basis for denial of Petitioner’s application. On the other hand, Ms. Martin found Ms. Peagler hostile to work with during the interview process with her. Ms. Martin did not feel that Petitioner could work cooperatively with the Department and could not be trusted to provide accurate information to the Department. She recommended denial of Petitioner’s 2007 application. Ultimately, Petitioner’s foster home application was denied on February 18, 2008. The basis for denial was her false statements, her history with the Department, and her intolerance and inflexibility with the Department. Currently, Petitioner is self-employed as a provider of services to persons with developmental disabilities. She is licensed through the Agency for Persons with Disabilities (APD). There was no evidence that Petitioner had difficulty working with APD. The evidence also did not show that Petitioner had a long and troubled relationship with APD or that APD was aware of Petitioner’s misrepresentations regarding her marriage and divorce. Robin Woods Reshard testified generally about her friendship with Petitioner. Although she works with school-age children, she never worked with or for the Department. Ms. Reshard primarily knows Petitioner through their Church. She speaks highly of Petitioner, although finds her to be stubborn, at times. She thinks Petitioner would make an excellent foster parent. However, given the facts of this case regarding Petitioner’s multiple litigations with the Department, her general suspiciousness regarding the Department and its personnel, her misrepresentations regarding her marriage and divorce, and her mistreatment of a client of the Department, her good work with APD and Ms. Reshard’s recommendation do not demonstrate that Petitioner can now work cooperatively with the Department or can be trusted by the Department to be honest with it in fostering children. Both of these qualities are necessary for successful licensure as a foster home. Therefore, Petitioner’s application for licensure as a foster home should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the application of Robin Peagler for foster home licensure. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734 Robin Peagler 1011 West Chase Street Pensacola, Florida 32501 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The Petition filed herein, among other matters, alleges, in pertinent part, that: This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987). The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules." Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . . * * * The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987). The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious. Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners. All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease. A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks. The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation. Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida. In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed. Sections 723.037(4), F.S. (1987), provides in pertinent part that: Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section if a majority of the affected home owners have designated, in writing, that: The rental increase is unreasonable; The rental increase has made the lot rental amount unreasonable; The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or The change in the rules and regulations is unreasonable. [Emphasis supplied]. The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. Section 723.037(6), F.S., provides that: No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038. Section 723.037(7), F.S., provides that: If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section. Section 723.004(4), F.S., provides that: Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023; 723.031; 723.033; 723.035; 723.037; 723.038; 723.061; 723.0615; 723.062; 723.063; or 723.081 by civil action after the party has exhausted its administrative remedies, if any. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part: The homeowners' committee shall request mediation, or the homeowners' committee and the park owner may jointly request arbitration, by mailing or delivering the following items to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South Bronough Street, Tallahassee, Florida 32399-1007: A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4), Florida Statutes; and A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and A copy of the records which verify the selection of the homeowners' committee in accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied] Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that: A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules. The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added. Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media- tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied] Rule 7D-32.005(6), Florida Administrative Code, provides: Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee. Rule 7D-32.005(7), Florida Administrative Code, provides: A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section 723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated. Rule 7D-32.001(5), Florida Administrative Code, provides: `Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici- pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is to assist the parties in arriving at a mutually agreeable settlement of their differences.
